Citation Nr: A25035150 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240725-458243 DATE: April 16, 2025 ORDER Entitlement to an initial rating in excess of 10 percent for radiculopathy, left lower extremity, sciatic nerve for the period prior to March 18, 2019, is denied. Entitlement to an initial disability rating of 40 percent, but not higher, for radiculopathy, left lower extremity, sciatic nerve for the period from March 18, 2019, to July 5, 2022, is granted. Entitlement to an initial rating in excess of 40 percent for radiculopathy, left lower extremity, sciatic nerve for the period since July 5, 2022, is denied. Entitlement to an initial rating in excess of 40 percent for radiculopathy, right lower extremity, sciatic nerve is denied. FINDINGS OF FACT 1. For the period prior to March 18, 2019, the Veteran's left lower extremity radiculopathy approximates mild incomplete paralysis of the sciatic nerve. 2. For the period from March 18, 2019, to July 5, 2022, the Veteran's left lower extremity radiculopathy approximates moderately severe incomplete paralysis of the sciatic nerve. 3. For the period since July 5, 2022, the Veteran's left lower extremity radiculopathy approximates moderately severe incomplete paralysis of the sciatic nerve. 4. The Veteran's right lower extremity radiculopathy approximates moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for radiculopathy, left lower extremity, sciatic nerve for the period prior to March 18, 2019, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Code 8520 (2021). 2. The criteria for an initial disability rating of 40 percent, but not higher, for radiculopathy, left lower extremity, sciatic nerve for the period from March 18, 2019, to July 5, 2022, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2021). 3. The criteria for an initial rating in excess of 40 percent rating for radiculopathy, left lower extremity, sciatic nerve for the period since July 5, 2022, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Codes, 8520, 8620 (2021). 4. The criteria for an initial rating in excess of 40 percent rating for radiculopathy, right lower extremity, sciatic nerve have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1978 to July 1982. In December 2022 the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an October 2022 Supplemental Statement of the Case (SSOC). In July 2023 the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior October 2022 decision. In the July 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the October 2022 AOJ decision, which was subject to higher-level review in the July 2023 decision. 38 C.F.R. § 20.301. Any evidence submitted after the October 2022 AOJ decision cannot be considered by the Board in this decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Higher Initial Ratings Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2021). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2021). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2021). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2021). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2021). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2021). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his radiculopathy of the bilateral lower extremities disabilities. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record and are probative for resolving the matters on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. A September 2017 rating decision granted service connection for sciatic nerve radiculopathy of the right and left lower extremities at initial 10 percent evaluations, effective June 12, 2007, under Diagnostic Code 8520. A March 2020 rating decision granted increased initial 20 percent disabilities rating for sciatic nerve radiculopathy of the right and left lower extremities, effective March 18, 2019, under Diagnostic Code 8520. An October 2022 rating decision granted increased initial 40 percent disabilities rating for sciatic nerve radiculopathy of the right and left lower extremities, effective July 5, 2022, under Diagnostic Code 8520. A July 2023 rating decision assigned an effective date of June 12, 2007, for the Veteran's initial 40 percent rating for sciatic nerve radiculopathy of the right lower extremity. As a result, the Veteran currently has an initial 40 percent rating for sciatic nerve radiculopathy of the right lower extremity and for sciatic nerve radiculopathy of the left lower extremity, initial ratings of 10 percent for the period prior to March 18, 2019, 20 percent for the period from March 18, 2019, to July 5, 2022, and 40 percent for the period since July 5, 2022. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Code 8520 was not changed. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under Diagnostic Code 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve of the lower extremity. A 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve of the lower extremity. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. A 60 percent evaluation is warranted for severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve of the lower extremity. An 80 percent evaluation is warranted for complete paralysis of the sciatic nerve of the lower extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Complete paralysis of the sciatic nerve is indicated where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The words "mild," "moderate" and "severe" are not defined in the VA Schedule for Ratings Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2021). It should also be noted that use of such terminology by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. § 4.2, 4.6 (2021). VA's Adjudication Procedures Manual (Manual), though not binding on the Board, provides also benchmarks for mild, moderate, moderately severe, and severe peripheral nerves conditions. See Chavis v. McDonough, 34 Vet. App. 1 (2021). Per the Manual, mild incomplete paralysis is described as the disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. Additionally, a very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. Moderate incomplete paralysis is described as the maximum evaluation reserved for the most significant cases of sensory-only impairment. Symptoms combinations that may fall into the moderate category include the following: combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished hyperactive reflexes (with or without sensory impairment) graded as medically moderate. Id. A moderately severe evaluation level includes motor and/or reflex impairment at a grade reflecting a high level of limitation or disability, and potentially atrophy. To be described as "severe," it would be expected that there is marked muscular atrophy. Id. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Factual Background and Analysis The Veteran underwent a VA examination in June 2008. The Veteran presented with complaints of constant bilateral pain going down both legs along the posterior aspect to the level of his knees. On examination, there was sensory loss to pinprick and fine touch of the entire aspect of both lower extremities. The Veteran underwent a VA examination in August 2013. The Veteran reported constant radicular pain in his legs. He denied lower extremity numbness or weakness. The sensory examination showed decreased sensation in the bilateral lower extremities. The Veteran had mild constant pain, paresthesias and/or dysesthesias and numbness in the right and left lower extremities. The examiner specified that the sciatic nerve roots were involved and found that the severity of the radiculopathy was mild. The Veteran underwent a VA peripheral nerves examination in March 2019. The sensory examination showed decreased sensation in the bilateral lower extremities. Muscle strength testing and reflexes were normal. The Veteran had moderate intermittent pain, paresthesias and/or dysesthesias and numbness in the right and left lower extremities. The Veteran had moderate incomplete paralysis of the sciatic nerve. The Veteran underwent a VA examination in October 2019. The sensory examination showed decreased sensation in the bilateral lower extremities. Muscle strength testing and reflexes were normal. The Veteran had severe intermittent pain and severe paresthesias and/or dysesthesias as well as mild numbness in the right and left lower extremities. The Veteran had moderate radiculopathy of the bilateral lower extremities. The Veteran underwent a VA peripheral nerves examination in October 2019. The sensory examination showed decreased sensation in the bilateral lower extremities. Muscle strength testing showed active movement against some resistance (4/5) and reflexes were normal. The Veteran had severe intermittent pain and severe paresthesias and/or dysesthesias as well as mild numbness in the right and left lower extremities. The Veteran had moderately severe incomplete paralysis of the sciatic nerve of the left lower extremity. The Veteran underwent a VA peripheral nerves examination in July 2022. The sensory examination showed decreased sensation in the bilateral lower extremities. Muscle strength testing showed active movement against some resistance (4/5) and reflexes were normal. The Veteran had severe intermittent pain and severe paresthesias and/or dysesthesias as well as moderate numbness in the right and left lower extremities. The Veteran had moderate incomplete paralysis of the sciatic nerve. The Veteran occasionally used a wheelchair, crutches and a walker. The Veteran's radiculopathy of the bilateral lower extremities impacted his ability to work as he was unable to stand, walk or get around without assistive devices as he had decreased sensation to his bilateral lower extremities with ongoing pain. The Veteran underwent a VA examination in September 2022. The sensory examination showed decreased sensation in the bilateral lower extremities. Muscle strength testing and reflexes were normal. The Veteran had severe intermittent pain and severe numbness in the right and left lower extremities. Period prior to March 18, 2019 As noted above, the Veteran currently has an initial 10 percent disability rating for sciatic nerve radiculopathy of the left lower extremity for the period prior to March 18, 2019, under Diagnostic Code 8520. Based on the evidence, the Board does not find that the Veteran is entitled to initial evaluation in excess of the current initial 10 percent disability rating for his radiculopathy of the left lower extremity symptoms as there is no indication that incomplete paralysis is more than mild to warrant a disability rating in excess of 10 percent for the period prior to March 18, 2019. As demonstrated by the August 2013 VA examination, the Veteran had mild constant pain, paresthesias and/or dysesthesias and numbness in the left lower extremity and there was no evidence of muscle loss or atrophy. The August 2013 VA examination also revealed that strength and reflex testing were normal. Additionally, the August 2013 VA examiner specifically determined that the Veteran had mild radiculopathy of the left sciatic nerve. In short, the evidence of record does not support a rating of 20 percent for moderate symptoms under Diagnostic Code 8520, as the medical evidence as a whole supports a disability picture consistent with no more than mild incomplete paralysis of the left sciatic nerve for the period prior to March 18, 2019. While the Veteran is competent to describe the radiating symptoms, the medical evidence of record demonstrates that manifestations of the Veteran's service-connected radiculopathy of the left lower extremity are wholly sensory and are mild in degree. In light of his symptoms and clinical findings, the Board concludes that these neurologic abnormalities approximate no more than mild incomplete paralysis of the sciatic nerve of the left lower extremity contemplated by the current initial 10 percent evaluation assigned for the radiculopathy of the left lower extremity for the period prior to March 18, 2019. Accordingly, the Board finds that an initial rating in excess of 10 percent is not warranted for the Veteran's service-connected radiculopathy of the left lower extremity for the period prior to March 18, 2019. Period from March 18, 2019, to July 5, 2022 As noted above, the Veteran again has an initial 20 percent rating for sciatic nerve radiculopathy of the left lower extremity for the period from March 18, 2019, to July 5, 2022. Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that an initial 40 percent disability rating, but no higher, is warranted for sciatic nerve radiculopathy of the left lower extremity for the period from March 18, 2019, to July 5, 2022. As noted above, under Diagnostic Code 8520 a 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. Notably, the October 2019 VA peripheral nerve examiner indicated that the Veteran had moderately severe incomplete paralysis of the sciatic nerve of the left lower extremity. Additionally, the October 2019 VA examiner noted that there was severe intermittent pain and severe paresthesias of the left lower extremity. As a result, and when affording the Veteran the benefit of the doubt, the Board finds that an initial 40 percent disability rating, but no higher, is warranted for sciatic nerve radiculopathy of the left lower extremity for the period from March 18, 2019, to July 5, 2022. However, an evaluation in excess of 40 percent for the sciatic nerve radiculopathy of the left lower extremity has not been demonstrated by the evidence of record at any point for the period from March 18, 2019, to July 5, 2022. While the Veteran had numbness and pain there was no evidence of foot drop, paralysis or constant weakness. Additionally, the March 2019 VA examiner and October 2019 VA lumbar spine examiner found that the Veteran had moderate incomplete paralysis of the sciatic nerve. The Board again notes that a higher 60 percent evaluation under Diagnostic Code 8520 requires severe incomplete paralysis and marked muscular atrophy of the sciatic nerve. As noted above, there is no evidence of muscular atrophy as the March 2019 and October 2019 VA examinations all specifically indicated that there was no atrophy. As a result, the Board finds that an initial 40 percent rating, but no higher, is warranted for the period from March 18, 2019, to July 5, 2022, as the Veteran has exhibited symptoms consistent with moderately severe incomplete paralysis in the left lower extremity. Excess of 40 percent As noted above, the Veteran again has an initial 40 percent rating for sciatic nerve radiculopathy of the right lower extremity and for the period since July 5, 2022, an initial 40 percent rating for sciatic nerve radiculopathy of the left lower extremity. Based on the evidence, the Board does not find that the Veteran is entitled to an evaluation in excess of 40 percent for radiculopathy of the right and left lower extremities. Notably, there is no indication that incomplete paralysis of the sciatic nerve of the right or left lower extremity is more than moderately severe to warrant a disability rating in excess of 40 percent. The July 2022 VA examiner indicated that the Veteran had severe intermittent pain and severe paresthesias and/or dysesthesias as well as moderate numbness in the right and left lower extremities while the September 2022 VA examiner noted severe intermittent pain and severe numbness in the right and left lower extremities. However, there were no indications of changes in bowel or bladder habits and there is no evidence of incapacitating episodes in the Veteran's treatment records. Additionally, there was no evidence of foot drop, paralysis or constant weakness and the July 2022 VA examiner found that the Veteran had moderate incomplete paralysis of the sciatic nerves. The Board again notes that a higher 60 percent evaluation under Diagnostic Code 8520 requires severe incomplete paralysis and marked muscular atrophy of the sciatic nerve. As noted above, there is no evidence of muscular atrophy as the July 2022 and September 2022 VA examinations both specifically indicated that there was no atrophy. As a result, the Board again finds that the evidence of record does not support a 60 rating for severe symptoms under Diagnostic Code 8520, as the medical evidence as a whole supports a disability picture consistent with no more than moderately severe incomplete paralysis of the left and right lower extremities. While the Veteran is competent to describe the radiating symptoms, the medical evidence of record demonstrates that manifestations of the Veteran's service-connected radiculopathy of the left and right lower extremities are wholly sensory and are moderately severe in degree. In light of his symptoms and clinical findings, the Board concludes that these neurologic abnormalities approximate no more than moderately severe incomplete paralysis of the right and left lower extremity contemplated by the current 40 percent evaluations. Accordingly, the most persuasive evidence is against initial ratings in excess of 40 percent for the radiculopathy of the sciatic nerves of the right and left lower extremities. Thus, the benefit-of-the doubt doctrine does not apply, and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. R. Bisignani Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.